381
[end of lecture 14]

LECTURE XV.

JUS IN REM—IN PERSONAM (continued).

In my last Lecture, I attempted to explain that leading and important distinction, which has been assumed by the Roman Institutional Writers, as the principal basis (or one of the principal bases) of their System or Arrangement: Namely, the distinction between rights in rem and rights in personam; or between rights which avail against persons universally or generally, and rights which avail exclusively against certain or determinate persons.

Having first endeavoured to state it in general or abstract expressions, I tried to illustrate the distinction between the two classes of rights by adducing examples of each.

As examples of jura in rem, I referred to the right of ownership, property or dominion; and also to those rights over subjects owned by others, which are styled by the Roman Lawyers servitutes or jura servitutis, and which may be styled in our own language (though not with perfect propriety) easements or rights to easements.

382 As examples of rights in personam, I referred to rights ex contractu, or to rights which arise directly from contracts properly so called. And I also adverted to the rights which arise from injuries or wrongs, and which (taking the term action in its largest import) may be styled rights of action. I say, in its largest import, because the term action is ambiguous; it has a wider and a narrower signification. Taken in its widest sense, it denotes any judicial remedy whatever; taken in its narrower sense, it expresses only a particular species of judicial remedy. There are many cases in which judicial remedies are not technically styled rights of action. Such, for instance, is, in the Roman Law, the edict unde vi, which answers almost exactly to our action of ejectment, being founded on a wrongful dispossession by the party against whom it is brought, and seeking specific restitution of the particular right of which the other party has been deprived. Again, a right to an injunction, and a right to a writ of habeas corpus, being founded on an injury, and seeking in the one case the stoppage of the injury, before it is completed, in the other case, the specific restoration of the party to the right of which he has been deprived by the injury, are to all intents and purposes rights of action, as much as those which are in technical jargon called by the name. The whole theory of actions is in truth perfectly easy and simple, were it not for the absurd technical distinctions by which it is perplexed and incumbered.

Further illustrations of the distinction between jus in rem and jus in personam.

In order that I may further illustrate the import of the leading distinction in question, I shall direct your attention to those rights in rem which are rights over persons, and to certain rights in rem, or availing against the world at large, which have no determinate subjects (persons or things).

Jus in rem restricted by certain writers to jus in rem over or in things.

Looking at the obvious signification of the epithet real (and of the phrase in rem, from which the epithet is derived), we should naturally conclude that a real right must be a right in a thing. And, accordingly, by many of the modern expositors of the Roman Law, the term real right or jus in rem (which terms I shall hereafter use as equivalent expressions unless the contrary is indicated), is restricted to such of the rights availing against the world at large, as are rights over things properly so called—that is to say, over permanent external objects which are not persons, as distinguished both from persons, and from those transient objects which are called acts and forbearances.

When I say that they restrict the term in the manner which 1 have now mentioned, I mean that they so restrict it 383when they state its meaning in generals, or when they attempt to define it. For, when they are occupied with the detail of the Roman Law, they unconsciously deviate from their own insufficient notion, and extend the term to numerous rights which are not rights over things. For example, it is admitted or assumed by every Civilian, that the right of the Roman heir over or in the heritage is a real right.

I say the right of the heir over or in the heritage. For, independently of the several rights which devolve to him from the testator or intestate, he has a right in the aggregate which is formed by those several rights; and which aggregate, coupled with the obligations of the deceased, constitute the complex whole which is styled the hereditas or heritage. In this heritage, so far as it consisted of rights, the heir had, by the Roman Law, a right which availed against the world at large, and which he could maintain against any one who might gainsay or dispute it, by a peculiar judicial proceeding called petitio hereditatis, which proceeding was an action in rem—that is, an action grounded on an injury to a real right, and seeking the restoration of the injured party to the unmolested exercise of the right in which he has been disturbed.

But though this right of the heir is indisputably jus in rem, it is not a right over or in a thing, or over or in things. It is properly a right in an aggregate of rights; partly, perhaps, consisting of rights over things, but partly consisting of rights which are of a widely different character: namely, of debts due to the testator or intestate; or of such rights of action, vested in the testator or intestate, as devolved to his heir or general representative. Here then was a case, and a most important one, in which the writers to whom I have referred departed from their own definition, and approached to that adequate notion of jus in rem, which I have endeavoured to impress upon my hearers; that which considers it to denote only the compass or range of the right: namely, that it avails against the world at large, in contradistinction to jus in personam, which avails only against certain or determinate individuals.

By jus in rem and jus in personam, the authors of those terms intended to indicate this broad and simple distinction; which the Roman lawyers also marked by the words dominium and obligatio—terms, the distinction between which was the groundwork of all their attempts to arrange rights and duties in an accurate or scientific manner. This is not a hasty surmise, but the result of a careful and ample induction, founded on a 384most diligent study of the Institutes of Gaius and of Justinian, and an attentive perusal of the Pandects or Digest of the latter. Nor is this opinion confined to myself; otherwise I should, of course, feel much less confidence in its correctness. But I share it with such men as Thibaut and Feuerbach, men of indefatigable perseverance and of a sagacity never surpassed. The importance of the distinction will appear in glaring colours, when I pass from the generalia into the detail of the science. I must, for the present, content myself with illustrating it in a general and passing manner; and shall shew its applications hereafter.

Besides the right of the heir over or in the heritage (which is deemed by every Civilian a real right), there are numerous real rights which are not rights over things: being rights over persons; or being rights to forbearances merely, and having no subjects (persons or things).

Rights in rem over persons.

Of rights existing over persons, and availing against other persons generally, I may cite the following as examples:—The right of the father to the custody and education of the child:—the right of the guardian to the custody and education of the ward:—the right of the master to the services of the slave or servant.

Against the child or ward, and against the slave or servant, these rights are rights in personam: that is to say, they are rights answering to obligations (in the sense of the Roman Lawyers) which are incumbent exclusively upon those determinate individuals. In case the child or ward desert the father or guardian, or refuse the lessons of the teachers whom the father or guardian has appointed, the father or guardian may compel him to return, and may punish him with due moderation for his laziness or perverseness. If the slave run from his work, the master may force him back, and drive him to his work by chastisement. If the servant abandon his service before its due expiration, the master may sue him as for a breach of the contract of hiring, or as for breach of an obligation (quasi ex contractu) implied in the status of servant.

But considered from another aspect, these rights are of another character, and belong to another class. Considered from that aspect, they avail against persons generally, or against the world at large; and the duties to which they correspond, are invariably negative. As against other persons generally, they are not so much rights to the custody and education of the child, to the custody and education of the ward, and to the services of the slave or servant, as rights to the exrercise of such 385rights without molestation by strangers. As against strangers, their substance consists of duties, incumbent upon strangers, to forbear or abstain from acts inconsistent with their scope or purpose.

In case the child (or ward) be detained from the father (or guardian), the latter can recover him from the stranger. In case the child be beaten, or otherwise harmed injuriously, the father has an action against the wrong-doer for the wrong against his interest in the child. In case the slave be detained from his master’s service, the master can recover him in specie (or his value in the shape of damages) from the stranger who wrongfully detains him. In case the slave be harmed and rendered unfit for his work, the master is entitled to satisfaction for the injury to his right of ownership. If the servant be seduced from his service, the master can sue the servant for the breach of the contract of hiring; and also the instigator of the desertion, for the wrong to his interest in the servant. In case the servant be harmed, and disabled from rendering his service, the harm is an injury to the master’s interest in the servant, as well as to the person of the latter.

The correlating conditions or status of husband and wife, will also illustrate the nature of the capital distinction, which I am endeavouring to explain and exemplify.

Between themselves, each has personal rights availing against the other, and each is subject to corresponding obligations (in the sense of the Roman Lawyers). Moreover, each has a right in the other, availing against the rest of the world, or answering to duties attaching upon persons generally. Adultery by the wife violates a right of the former class, and entitles the husband (against the wife) to an absolute or qualified divorce. Adultery with the wife violates a right of the latter class, and gives him an action for damages against the adulterer.

A person who is the subject of jus in rem is placed in a position like the position of a thing which is the subject of a similar right. And may be styled (by analogy) a thing.

And here I may remark conveniently, that where a real right is over a person, or where a personal right is a right to a person, the person is neither invested with the right, nor is he bound by the duty to which the right corresponds: the right residing in a person or persons distinct from himself, and availing against a person or persons also distinct from himself. He therefore is merely the subject of the real or personal right, and occupies a position analogous to that of a thing which is the subject of a similar right. Consequently, whatever be the kind or sort of the real or personal right, he might be styled analogically (when considered as its subject), a thing.

386 For example, Independently of his rights against the child, and independently of his obligations towards the child, the parent has a right in the child availing against the world at large. And, considered as the subject of this last-mentioned right, the child is placed in a position analogous to that of a thing, and might be styled (in respect of that analogy) a thing.

Independently of his rights against the parent, and independently of his obligations towards the parent, the child has a right in the parent availing against the world at large. The murder of the parent by a third person might not only be treated as a crime, or public wrong, but might also be treated as a civil injury against that right in the parent which belongs to the child. By the laws of modern Europe, the civil injury merges in the crime; but in other ages the case was different; the offender lay under a twofold obligation: to suffer punishment on the part of the society or community, and to satisfy the parties whose interest in the deceased he had destroyed. Before the abolition of Appeals in criminal cases,⁴⁸ this was nearly the case in the law of England. The murderer was obnoxious to punishment to be inflicted on the part of the State; and the wife and the heir of the slain were entitled to vindictive satisfaction, which they exacted or remitted at their pleasure. And this is the distinction, and the only one, which exists between a civil injury and a crime.⁴⁹

Now, considered as the subject of the real right which resides in the child, the parent is placed in a position analogous to that of a thing, and might be styled (in respect of that analogy) a thing. In short, whoever is the subject of a right which resides in another person, and which avails or obtains against a third person or persons, is placed in a position analogous to that of a thing, and might be styled (in respect of that analogy) a thing.

387 But though any person, as the subject of any right, might be styled (by analogy) a thing, this analogical application of the term thing has (in fact) been partial and capricious. So far as I can remember, there are two instances, and only two, in which the term thing has been applied to persons, considered as the subjects of rights.

Considered as the subject of the real right which resides in the master, the slave is occasionally ranked by the Roman Lawyers with things. And considered as the subject of the real right which resides in the paterfamilias, the filiusfamilias has been classed with things by certain modern Civilians. Respectu patris filiusfamilias est res, respectu aliorum persona. These are the words of Heineccius and others.

According to a current opinion, which I mentioned in a preceding Lecture, the slave was not considered by the Roman Lawyers as belonging to the class of persons. But this is one of those opinions, utterly destitute of foundation, which have been successively received by successive generations, though the means of detection are open and obvious to all. Considered as bound by duties towards his master and others, the slave is ranked by the Roman Lawyers with physical persons; and is spoken of as bearing, or sustaining, a person, status, or condition. Considered as the subject of the right residing in his master, and availing (not against himself, but against third persons), he is occasionally styled res. But, even as considered from this aspect, he is usually deemed a person rather than a thing, and is styled usually servilis persona. The right of the master to the services of the slave is distinguished by a different name from that which expresses the analogous right in a thing. It is called potestas, or potestas domini in servum, not dominium. This last is the name most commonly applied to the analogous right to a thing; it is, however, though less frequently, called, proprietas; or, still more rarely, in re potestas. Gaius, in describing mancipation, which is a particular form of conveyance, and enumerating the subjects which may be conveyed by it, says, Eo modo et serviles et liberæ personæ mancipantur. Here the slave is spoken of as the subject of a right in the master, and is yet styled servilis persona. In all the passages in which he is spoken of as res; e.g. in the passage at the beginning of the 2nd Book of Gaius, where he distributes things considered as subjects of rights; in treating of usufruct, where he speaks of ususfructus hominum et ceterarum animalium; and in the most decisive passage of all, that in the Digest, where the action called rei 388vindicatio, corresponding to our real action for the recovery of land, and our action of detinue for a chattel, is said to be applicable to the recovery of a slave; in all these passages, the slave is spoken of as the subject of rights in the master, availing against third persons, and not as being himself subject to obligations. As for the filiusfamilias, I am not aware of any passage in the classical jurists where he is styled a thing. In the passage of the Digest, to which I have just referred, it is denied by implication that he can be ranked with things. Per hanc autem actionem, libræ personæ quæ sunt juris nostri ut puta liberi qui sunt in potestate, non petuntur. The right of the father over his son is never styled dominium or proprietas, but patria potestas, or potestas patris in liberos.

Many have been shocked and scandalised by the Roman Jurists, because these hard-hearted and cold-blooded lawyers degraded the slave to a level with things.

Upon which gross misconception, I remark as follows:

It is not true that the Roman Lawyers ranked slaves with things. Or if it be true, it is only true in that limited sense which I have just explained. And, admitting that the Roman Lawyers ranked slaves with things, it follows not that they were cold-blooded men, and intended to degrade and vilify the miserable slave. In styling the slave a thing, they considered him from a certain aspect: namely, as being the subject of a right residing in another person, and availing against third persons. And (as I have proved to satiety) the analogy which led these lawyers to rank the slave with things, would justify the extension of the term thing to any person who is the subject of any right. I am far enough from wishing to palliate slavery, which I regard with the utmost abhorrence, but I wish that its opponents would place their reprobation of it on the right foundation.

Much eloquent indignation has also been vented superfluously on the application of the term chattel to the slaves in the English colonies: seeing that the term chattel, as applied to the slave, does not import that the slave is deemed a moveable thing, but that the rights of the master over his slaves, like his analogous rights over his moveable things, devolve, on the master’s intestacy, to a certain class of his representatives.

Jus realiter personale. Rights in rem, without determinate subjects.

Having cited examples of real rights which are rights over persons, I will cite an example or two of real rights, which are not rights over things or persons, but are rights to forbearances merely.

389 1. A man’s right or interest in his good-name is a right which avails against persons, as considered generally and indeterminately: they are bound to forbear from such imputations against him as would amount to injuries towards his right in his reputation. But, though the right is a real right, there is no subject, thing or person, over which it can be said to exist. If the right has any subject, its subject consists of the contingent advantages which he may possibly derive from the approbation of others.

2. A monopoly, or the right of selling exclusively commodities of a given class (a patent right for instance), is also a real right: All persons, other than the party in whom the right resides, are bound to forbear from selling commodities of the given class or description. But, though the right is a real right, there is no subject, person or thing, over which it can be said to exist. If the right has any subject, its subject consists of the future profits, above the average rate, which he may possibly derive from his exclusive right to sell.

3. Many more examples of this class of rights might be selected from among franchises; a law term embracing an immense variety of rights, having no common property whatever except their supposed origin, being all of them considered to have been originally granted by the Crown. Such, for example, is a right of exclusive jurisdiction in a given territory, or a right of levying a toll at a certain bridge or ferry. The law in these cases empowers a party to do certain acts, and enjoins all other persons to forbear from every act which would defeat the purpose of the right. But these rights are not exercised over any determinate subject, and are yet available against the world at large. The rights in personam which concur with the rights in question are perfectly distinct from those rights themselves. Those who reside within the territory, or who traverse the bridge, are bound by obligations arising out of the franchise; but these obligations, which result from their peculiar position, and which answer to rights in personam, are distinct from the obligation incumbent upon third parties, and answering to the right in rem: namely, the obligation not to impede the exercise of the jurisdiction, the levying of the toll, or the passage over the bridge; nor to carry passengers across within the limits of the ferry, to the detriment of the exclusive right of the person entitled.

4. Lastly, a right in a Status or Condition (considered as an aggregate of rights and capacities) is also a real right. I am not able at present to explain the nature of Conditions. To 390determine precisely what a Status is, is in my opinion the most difficult problem in the whole science of jurisprudence. For the purpose immediately before me, the following remarks will suffice.

A Status or Condition may be purely onerous, or may consist of duties only. Such was the condition of the slave, according to the older Roman law. He was the subject of rights residing in his master, and availing against third persons. He also was bound by duties towards his master and others. But he had not a particle of right as against his master or even against strangers. Considered as the subject of rights residing in his master, he was susceptible of damage: But he was not susceptible of injury.

Now a right in a condition which is purely burthensome, is hardly conceivable. But, so far as a condition consists of rights, and of capacities to take rights, we may imagine a right in the condition considered as a complex whole.

According to the Roman Law, as the heir has a right in the heritage (abstracted from its several parts), so has the party invested with a condition, a right or interest in the condition itself (abstracted from the rights and capacities of which it is compounded). His right in the condition, considered as an aggregate or whole, is analogous to the right of ownership in a single or individual thing.

Consequently, wrongs against this right are analogous to wrongs against ownership; and, according to the practice of the Roman Law, wrongs of both classes are redressed by analogous remedies. Where the individual thing is unlawfully detained from the owner, he may vindicate or recover the thing. And where the right in the condition is wrongfully disputed, the party may assert his right by an appropriate action, which is deemed and styled a vindication.⁵⁰

The reason why status or condition make so little figure in the English law as compared with the Roman, though the idea must of course exist in all systems of law, seems to be this: that the right in a status may by the Roman law be asserted directly and explicitly by an action expressly for its recovery; while in English law no such action can be brought, and the right to a status, though of course it often becomes the subject of a judicial decision, almost always comes in as an episode, incidental to an action of which the direct purpose is something 391else.⁵¹ Thus a question of legitimacy, which is precisely a question of status, is usually brought in and decided upon incidentally, in an action of ejectment. The question whether or not a particular person is a slave, would generally come before the judge upon a prosecution by the slave of the person claiming to be his master for doing some act which would be illegal unless the claim could be established. The only case in which a question of status is decided directly in English law, is when a jury is summoned to try that precise question as an issue incidental to a suit in another court.

Notes found at the End of Lecture XV.

The definition of jus in rem, that ‘it begets a vindicatory action against every unlawful disturber,’ is not universally true. It may beget a mere right to satisfaction (e.g. Trover). If true, it is a mere consequence or property of the right, and is not of its essence.

Besides it merely amounts to this: that the disturbance begets a right of action against the disturber or violator; which is true of every disturbance of a right in personam.

N.B. Any prevention of the completion of an Obligation (stricto sensu) caused by a third party would be no violation of a Right in the Obligee; or, if it would, would be a violation of a distinct Right. A stranger who engages a builder to undertake an extensive work, or wounds or maims him (thereby in either case, preventing him from completing a previous contract with myself) violates no Right in me; and my remedy is against the builder for the breach of Contract with myself. A stranger who inveigles my servant, violates, not my jus ad rem under the contract, but my jus in re. The servant himself, indeed, does; and for this breach of his Obligation (stricto sensu), I may sue him on the contract.

Obligation to pay taxes; Obligation to military service, etc.

The obligations to military service, etc., seem to be merely absolute obligations. (See Lecture XLIX.) The state, to which it is due, and which alone can have the Right, has not properly Rights. Besides, there is no Person or Thing to which the State has a right, as against all. It has merely a right to the services of the deter392minate individual. It has not a right to the money in specie, to the services, etc., as against others; but a right to the payment of the tax and the performance of the service, against the determinate person upon whom the obligation rests. So soon as the tax is paid, the Government indeed has jus in re in the money which is rendered; and as against other persons, it has a right (analogous to the jus in re of an ordinary master) to the services of the determinate person. e.g. A conscript is punishable for desertion by virtue of the Obligation (stricto sensu)—a person seducing him to desert, by virtue of the obligation, which answers to the jus in re.

The right which the Government has to the services of its subjects generally, is in truth not a Right to a person or thing against all; but Rights against a number; rights that they shall perform a particular obligation on the happening of such an incident.

(The passage in Hugo referred to in the note at the bottom of the last page, is as follows, together with Mr. Austin’s marginal notes.)